2003124 (MIGRATION)

[2020] AATA 1152

2003124 (MIGRATION) [2020] AATA 1152 (27 FEBRUARY 2020)

DECISION RECORD

DIVISION:Migration & Refugee Division

CASE NUMBER:  2003124

MEMBER:Nicole Burns

DATE:27 February 2020

PLACE OF DECISION:  Melbourne

DECISION:The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

Statement made on 27 February 2020 at 11:29am

CATCHWORDS
MIGRATION – Bridging E (Class WE) visa – Subclass 050 (Bridging (General)) – abide by conditions imposed – reporting and notification requirements –past immigration history – failure to regularise immigration status – no work requirement – strong desire to work – incentives of a security bond – decision under review affirmed

LEGISLATION
Migration Act 1958 (Cth), s 73
Migration Regulations 1994 (Cth), Schedule 2, cl 050.223; Schedule 8, Conditions 8101, 8401, 8506

CASES
Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289
Tennakoon v MIMIA [2001] FCA 615

Any references appearing in square brackets indicate that information has been omitted from this decision pursuant to section 501K of the Migration Act 1958 and replaced with generic information.

STATEMENT OF DECISION AND REASONS

APPLICATION FOR REVIEW

1. This is an application for review of a decision made by a delegate of the Minister for Immigration to refuse to grant the applicant a Bridging E (Class WE) visa under s.73 of the Migration Act 1958 (the Act).

2. The applicant applied for the visa on 18 February 2020. At that time Class WE contained two subclasses: Subclasses 050 and 051. In the present case, the applicant is seeking to satisfy the criteria for the grant of a Subclass 050 visa, which are set out in Part 050 of Schedule 2 to the Migration Regulations (the Regulations). Relevantly to this matter, the primary criteria include cl.050.223.

3. The decision to refuse to grant the visa was made on 18 February 2020 on the basis that the delegate was not satisfied that the applicant would abide by relevant visa conditions if the visa was granted.  The applicant appeared before the Tribunal (via video link from Perth, Western Australia) on 26 February 2020 to give evidence and present arguments. The Tribunal also received oral evidence from [Ms A] over the telephone.  The Tribunal hearing was conducted with the assistance of an interpreter in the Mandarin and English languages.

4. The applicant was represented in relation to the review by his registered migration agent. He participated in the hearing via the telephone.

5. For the following reasons, the Tribunal has concluded that the decision under review should be affirmed.

   CONSIDERATION OF CLAIMS AND EVIDENCE

   Immigration history

6. At the Tribunal hearing the applicant confirmed his immigration history as set out in the delegate’s decision record (a copy of which was provided to the Tribunal on review) and reflected in the Department’s records as follows:

   ·The applicant came to Australia [in] July 2008 as the holder of a [temporary] visa.

   ·He applied for a Protection visa on 14 July 2008 which was refused on 11 October 2008.  The former Refugee Review Tribunal (RRT) affirmed the decision on 24 February 2009.

   ·The applicant lodged an appeal of the RRT decision with the Federal Court [in] March 2009 and was granted an associated bridging visa A [in] March 2009. The Minister won and the applicant lodged an appeal of that decision with the Full Federal Court [in] June 2009.  The Minister won again and the applicant lodged an appeal of that decision with the High Court [in] September 2009.  However the applicant subsequently withdrew that application on 7 October 2009.

   ·The applicant’s bridging visa A ceased on 4 November 2009. 

   ·On 19 May 2010 the applicant initiated an s.48B request.  A bridging visa E was granted on departure grounds on 24 May 2010 and again on Ministerial intervention grounds on 7 June 2010, which ceased on 24 June 2010. 

   ·On 23 February 2011 the s48B request outcome was that the subsequent application was not allowed.

   ·The applicant lodged a (fourth) judicial review of the protection visa decision with the Federal Court [in] January 2020. He applied for a Bridging visa E (the subject of this review) on 30 January 2020.

   Whether the applicant will abide by conditions - cl.050.223

7. Clause 050.223 requires that the Tribunal is satisfied at the time of decision, that if a bridging visa is granted to the applicant, the applicant will abide by any conditions imposed on it. Conditions that may be imposed on a Subclass 050 visa are provided for in Division 050.6 and set out in Schedule 8 to the Regulations. Division 050.6 also sets out conditions to which the visa is subject.

8. When considering cl.050.223, the Tribunal must consider which conditions, if any, should be imposed and whether it is satisfied that the applicant would abide by those conditions. In deciding the question of whether the applicant would abide by conditions imposed, the Tribunal is to consider the likely conduct of the applicant. In that context, relevant considerations may include the applicant’s past immigration history, in particular any previous breaches of immigration laws, the significance of the migration laws that were breached, the wilfulness with which those laws had been breached, whether there were any mitigating circumstances justifying their breach and whether the applicant had shown any contrition for their unlawful conduct: Applicant VAAN of 2001 v MIMA (VAAN) (2002) 70 ALD 289 at [15]-[16].

9. If the Tribunal is satisfied that the applicant will abide by the conditions if security of a particular amount is required, the applicant meets cl.050.223. However, if not satisfied that the applicant will comply with the conditions, regardless of any security that may be imposed, cl.050.223 is not met.

10. In this case condition 8101 – the holder must not engage in work in Australia – is a mandatory condition.  The Tribunal considers that the following conditions should be imposed in the circumstances of this case:

    ·8401 – The holder must report (a) at a time or times and (b) at a place specified by the Minister for the purpose.

    ·8506 – The holder must notify change of address.

11. Among other things, at hearing the Tribunal discussed with the applicant the conditions requiring him to report as directed and notifying the Department of any change of address: 8401 and 8506.  The Tribunal noted its concern that he may not abide by such conditions given he failed to contact the Department in the periods when he was unlawful: that is from 5 November 2009 to 23 May 2010 and from 25 June 2010 to 29 January 2020 – almost 10 years in total.  The applicant acknowledged that he did not contact the Department during this period to try and regularise his immigration status, stating that he had applied for protection and did not want to go back (to China).  The Tribunal accepts the applicant may not have wanted to return to China, but his failure to contact the Department for almost 10 years casts serious doubt on whether he would abide by relevant future visa conditions imposed on a bridging visa.  At hearing the Tribunal asked him why he decided to try and regularise his immigration status recently: in lodging another appeal of the RRT’s decision to affirm the Department’s decision to refuse to grant him a Protection visa in late January 2020.  The applicant said because he wanted to try and get a visa so he can work more than he has been: that is three to four days a week casual work, as a [Occupation 1].  However his response also raises concerns that the applicant would not abide by the visa condition that he does not work if the bridging visa is granted. Given the applicant’s very poor history of past compliance with Australian immigration laws and his failure to contact the Department to regularise his immigration status for almost ten years, the Tribunal is not satisfied that he would abide by the conditions that he must report to the Department and notify of any change of address. 

12. The applicant told the Tribunal if his bridging visa application is successful (on review) he plans to live with the mother of a friend of his, [Ms A], and her husband in their house in Perth.  She will also provide him with food and other financial assistance, for an indefinite period of time.  The Tribunal spoke to [Ms A] at hearing who confirmed these arrangements.  When asked why she was willing to support the applicant, she said because he is best friends with her daughter’s husband.  In terms of work, she said she works as a ‘sole trader’.  The representative provided copies of her tax return statement for 2019 showing that she and her spouse have the financial capacity to assist the applicant to a certain extent.   The Tribunal accepts the applicant’s friend’s mother plans to support the applicant if his bridging visa application is successful and they will live together.   This will ease the applicant’s need to work.  However the Tribunal remains concerned that the applicant will work nonetheless, given his evidence that he has worked on a causal basis (as a [Occupation 1]) for most of the time he has been in Australia, including the period when he was unlawful, and that the reason he sought another appeal in late 2020 was because he wanted to be able to get a visa so he can work (more).  Given this, and the possibility that the applicant’s appeal process could be lengthy, the Tribunal is not satisfied that he would abide by the ‘no work’ visa condition that would be imposed.    

13. Having regard to the totality of the evidence before it, the Tribunal is not satisfied that the applicant would comply with the above conditions of his bridging visa.   

14. Having regard to the above, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted without the added incentive of a security. In accordance with the approach set down in in Tennakoon v MIMIA [2001] FCA 615 (Gray J) and Applicant VAAN of 2001 v MIMA [2002] FCA 197 (Finkelstein J), the Tribunal has therefore proceeded to consider whether the conditions would be complied with if a security is taken.

15. The Tribunal notes in an email dated 26 February 2020 the representative states that at interview (on 18 February 2020) the delegate asked the applicant for $100,000 security bond.  In the decision record the delegate notes that they had considered imposing a security bond to ensure the applicant’s compliance with relevant visa conditions, but they were not satisfied ‘that amount’ (unspecified) will ensure compliance with the visa conditions given the applicant’s lack of support in the community, history of compliance and engagement with the Department over an extended period of time (and limited savings).  This is not a decision made under s.269 of the Act before the Tribunal to review and therefore the Tribunal does not have the power to require a security pursuant to s.269 of the Act.   Nonetheless, the Tribunal has considered whether or not it considers if the applicant will comply with conditions, should a security be required of a particular amount.  However, having regard to its concerns as set out earlier, particularly in relation to the applicant’s poor immigration history and poor engagement with the Department, the Tribunal considers that no amount of security would ensure the applicant’s compliance with the conditions which would be imposed on his visa.

16. Having regard to the above, the Tribunal is not satisfied that the applicant will abide by conditions imposed on the visa if granted. Therefore, the applicant does not meet cl.050.223.

17. For these reasons, the applicant does not satisfy the criteria for the grant of a Subclass 050 (Bridging (General)) visa.

18. The visa application is also an application for a Subclass 051 (Bridging (Protection Visa Applicant)) visa. The applicant is not a relevant eligible non-citizen as set out in cl.051.211 of Schedule 2 to the Regulations and therefore does not meet the requirements for the grant of that visa.

    Other matters:-

19. The representative submitted a statutory declaration dated 24 February 2020 to the Tribunal from [Ms B], a family friend of the applicant.  In it she states that she accompanied the applicant to his interview with the delegate on 18 February 2020; on arrival the delegate demanded information about her identity; because she was scared and unsure she was initially reluctant to provide them with any information; eventually she did and after some checking was allowed to go; and she is concerned her lack of cooperation impacted negatively on the applicant’s assessment by the delegate for his Bridging visa application.  The Tribunal accepts the applicant’s friend who accompanied him to the interview with the delegate may have been asked to provide evidence of her identity, which she did reluctantly, and the encounter was upsetting.  However even if so, this does not alter the Tribunal’s facts and findings above in respect to being not satisfied that the applicant would abide by relevant visa condense if the bridging visa is granted.

    DECISION

20. The Tribunal affirms the decision not to grant the applicant a Bridging E (Class WE) visa.

    Nicole Burns
    Member